Give it a rest already – Myths and Facts about mass copyright litigation

by Vaughn Greenwalt

The latest criticism of mass-copyright litigation follows the same mantra of previously-pissed patrons: “I know I stole your porn but I’ll be embarrassed if anyone finds out so you can’t sue me!” Cut the crap already, “shame” is not a legal defense.

Lets play fact or fiction with the latest misleading article which was, oddly enough, endorsed by the EFF:

1. FACT: “The lawsuits name ‘Doe’ defendants until they can unearth the true identities of those accused of downloading porn through their Internet providers.”

Naming Doe defendants is the only way to bring suit against thieves who steal Copyright protected works over the Internet. The identities of those thieves is only ascertainable once the personally identifiable information associated with the thieves Internet Protocol address (“IP address”) has been subpoenaed.

The industry isn’t blackmailing thieves with the prospect of naming a Doe defendant, it is the only legal course to obtain requisite discovery.

Fact: Steele named himself “Pirate Slayer,” and most of the industry mocks him. When he showed up to a conference wearing a badge that said “Pirate Slayer,” he immediately gained the nickname “Buffy.” That’s what the adult entertainment industry calls him — Buffy. And it isn’t a compliment.

Every studio has separate and distinct legal counsel and thus a separate and distinct legal strategy. While I cannot speak to the strategy employed by Mr. Steele, I can speak to the strategy employed by the Editor of this blog – it is anything but simple.

Without violating my ethical duty of confidentiality and privilege, I have been in many a meeting in which special emphasis was placed on “doing it right.” Efforts to safeguard the privacy of the defendants, fairness to the defendants, an opportunity to defend before being named as a defendant, and forewarning of the suits before suits were filed. In addition, some studios offered amnesty to those who sought to protect their privacy.

3. FICTION: “The intent of these lawsuits is to get peoples’ identifying information and attempt to extort settlements out of them” – Corynne McSherry, EFF’s Intellectual Property Director.

Ms. McSherry’s dogmatic whining borders on mental illness. Perhaps she should look up the definition of “extortion.” Words mean something. This word means to obtain money or property to which one is not entitled by threats or coercion. When a copyright owner seeks redress under the copyright act, the copyright owner is seeking restitution in a manner specifically authorized under the law. McSherry should not use big words without supervision if she doesn’t know what they mean.

Copyright’s purpose is to foster the creation of creative works. The music industry has already been economically gutted thanks to the likes of Napster, Kazaa and Limewire; the porn industry is seeking to avoid that very same fate. If protection is weakened so too is the drive to create and thus all suffer (even those of us who enjoy it late at night while our partner is sleeping). If copyright protected content is freely distributed among torrenters, then studio membership is impacted, which then impacts studio revenue, which then impacts studio quality and quantity, which then in-turn further impacts studio membership, which ultimately impacts the studio’s very existence.

I hope the EFF recognizes the difference between dissent and disloyalty (I reallylove you guys!). However, I find it odd that the Director of Intellectual Property is tossing grenades at those who would seek to protect their own Intellectual Property.

4. FICTION: “The so-called “mass copyright” cases all follow the same format: an adult film company sues scores of anonymous defendants, alleging a particular movie was pirated using the popular file-sharing technology BitTorrent. The number of defendants can be staggering, dwarfing the scope of the music industry’s lawsuits; there were 2,100 Does named in one recent San Jose case, and 23,000 in the largest thus far in Washington, D.C.”

As referenced above, every porn studio has independent legal counsel complete with independent legal strategy, while some attorneys may look for the quickest and most efficient way to make a buck for their clients, others, like my Editor, do not.

Some attorneys, while legally proper to sue 23,000 defendants in a single suit, put their law clerks through WEEKS OF PURE TORTURE to determine the location of the individual IP addresses and group them based on state and federal judicial district. Once determined, suit is brought against them in their home state and district and regularly reduces the number to less than 100 Doe defendants in any single suit.

Again, some attorneys take great pain to make litigation fair for thieves.

5. FACT: Mark Lemley is… eh…. brilliant?

I have been to many symposiums where Mr. Lemley has proposed theoretically brilliant additions to U.S. Intellectual Property Law. I have witnessed, in sheer awe, his ability to dismiss, answer and be condescending all in a single sentence.

However, Mr. Lemley’s brilliant theoretical ideas are not so brilliant when it comes to actual litigation and practice . Incredibly, Lemley provided a brilliant addition to the subject article regarding the porn industry’s torrent suits: “… it made people at the margins nervous about file sharing… people are going to think twice about doing this.” Lemley is absolutely correct in his assessment. THIS is the ultimate goal of the porn industry’s torrent litigation; not to shame the pron-viewing public (honestly, isn’t that all of us?) for their lunch money, but to deter the theft and infringement of their Intellectual Property.

The simple answer to EVERY concern opponents of mass-copyright litigation has is incredibly simple: Theft is theft – no matter the medium. STOP STEALING SHIT AND YOU WON’T HAVE TO WORRY ABOUT IT!!!!

11 Responses to Give it a rest already – Myths and Facts about mass copyright litigation

Theft and copyright infringement or piracy differ in kind not degree. Law is law and legislation is legislation, but outside of the echo-chamber of certain content producers entitled by a government granted monopoly, and associated flacks, people who have thought past the indignant labels you throw around don’t equate the two morally. Copy a file and no one is deprived of anything, except for monopoly rents that content providers are (legally) entitled to because COPYRIGHT!!. A lot of us work every day and create stuff every day; we don’t get paid over and over for it now matter the effort, energy and money we put into it. We’re not impressed at whining because somebody watched a piece of work you did years ago and didn’t fork over more dough for it.

“Copyright’s purpose is to foster the creation of creative works.” you write. So what? The purpose of the monopoly is to foster delivery of mail. The purpose of the old telephone monopoly was to foster the delivery of telephone services. You can argue the effectiveness of any of those one of those systems compared to another, but you don’t get a moral or economic pass to say that they work for people excluded from that monopoly.

By the way, the music industry is doing just fine thankyouverymuch. Admittedly, the sale of shiny plastic disks are declining.

Problem is, as the marginal cost of production of a good goes to zero the price (not value, but price) tends to follow right along. That’s economics and legislating against it is a tough row to how to understate things. So if the porn industry has anything to worry about it’s probably not file sharers but all of those price free sites out there that are popping up like boners.

Yeah, yeah, yeah, you’re not exhorting money from people; unlike Righthaven you’re clients actually have legal right to the flicks in question. To the laity out here, you’re pretty much straining gnats. Sure, maybe you do better that just sending demand letters to the registered renter of an IP address. Maybe you don’t send demand letters to hockey arenas, and laser printers. Maybe you can’t pin point it down to the very infringer… Until I see a reason to believe otherwise I’m gonna doubt it. You see, lawyers are the priests in our degenerate times; you have the keys to the temple. You KNOW how expensive it is to deal with a mistaken lawsuit, because I assume that’s why you do such wonderful pro-bono work. The cost of representing a client in a superfluous matter is a business expense for you, but for a lot of those “23k” that cost is private school tuition or a new transmission – something that actually makes their lives better. So you’ll have to excuse me if I see a clipping of another mass lawsuit and think “there but by the grace of God…”

My point here is not to convince you of anything, rather to explain why your dudgeon rings very hollow. I say that as a fan. The snark, the smackdowns, the ass-kicking in the name of basic liberties that goes on around here gives more of a chubby than ever your client’s products could. Righthaven… Christ, that’s God’s work right there.

So yeah, you’re right, law’s on your side. You’re a business and take advantage of business opportunities. We get it. You’re human and need to take a shit from time to time. But no need to rub our noses in it. Or, if you must, at least let’s have a little more Tatyana…

It deprives the studios of membership and the revenue attached to those memberships. Which translates to the ability of studios to pay their bills – including employee payroll. You know, the employees who rely on the studios to make a buck so they can keep their damn jobs! To keep their jobs and get paid so that they too can pay the “cost [of] private school tuition or a new transmission – something that actually makes their lives better.”

It’s the size that matters. The judges are bothered by the way consumer-level downloaders are being caught up in out of scale sanctions. It sounds like you agree. If they are thieves, as you call them, you must think that they should face the same penalties that a thief faces. Since they are “stealing,” as you call it, stuff that’s worth $15 or $30, it’s on the scale of shoplifting. First-time shoplifters usually walk out of court with a fine of $200, tops. So I look forward to your post calling for $200 in sanctions for copyright infringement for consumer-level violators.

Except that its not “shoplifting” its “copyright infringement”, which the government (apparently) feels is a bit more of a problem than basic theft – because the statutory minimum per each act of infringement is $750.

Also, I’d be more open to your argument if the “thieves” only stole 1 copy of the $15-30 video (in reality the video in question is roughly $60). However, the infringers (at least the ones we go after) not only steal ONE copy of a video, but then they share that copy with THOUSANDS of other thieves. There is even a hierarchical structure in thievery. (google: “seeders” and “leechers”).

Furthermore, your logical premise is flawed: Because I (rightfully) refer to infringers as thieves then I must also advocate for the same penalties? Murder is murder whether its one murder or 1000, but the penalty is certainly increased based on the number of victims! The same is true here – the statutory MINIMUM is $750 PER INFRINGEMENT. On the basis that each infringer REPEATEDLY shares the video at least 100 times (an incredibly conservative estimate) then the minimum penalty would be far more than what defendants are currently settling for.

The point of mass-copyright litigation (at least as it pertains to our clients) isn’t to make as much money as we possibly can or we would see EVERY suit to its end at $750/instance of infringement (my calculator just broke trying to figure that out). Rather it is to deter future infringement by penalizing those who are actively torrenting.

Want to see who’s right? Walk into your neighborhood Target and steal 400 copies of a DVD. I’m willing to bet that fine is a tad higher than $200.

Yeah… really. Except, that is, the monopoly rents conferred on them by copyrights. Swiping something off a shelf prevents somebody else from buying that very item. Downloading a file prevents no one from buying that item.

1. Every download is not a lost sale; not necessarily money out of the producers pockets. This isn’t true. There’s no reason to think that all or most of the downloads would have been actual sales if this were, say, 1995. In fact, some artists and game developers have used piracy as a promotional tool for current products, future ones, and actual scarce goods. Not to mention that others have found that those who fileshare spend as much, or more, money on content as those who don’t.http://www.independent.co.uk/news/uk/crime/illegal-downloaders-spend-the-most-on-music-says-poll-1812776.html

2. I’m all for everybody making a buck. But there’s no gettin’ around the fact as the marginal cost of your product goes to zero, so does the price you can ask. If I create a solution for a client’s HR department and then their Finance dept implements it too, I don’t get paid twice. Hell, if my company implements it for another client, I don’t get paid again. I have to find a scarcity (more and different solutions) to get paid for. Porn companies are already starting to ride that edge and sooner or later your client will too.

Well this business model/economics crap isn’t about law, nor liberty, nor politics and barely touches tech so I’ll stop yammering. As you said, dissent isn’t disloyalty and I’m with you guys on much – just not on this.

“Except that its not “shoplifting” its “copyright infringement”, which the government (apparently) feels is a bit more of a problem than basic theft – because the statutory minimum per each act of infringement is $750.”

This is the point of my comment, Vaughn. The question is *should* it be so high, not is it. The judges feel it shouldn’t be. Neither, apparently, do you. Because, as you note, it is $750 PER INFRINGEMENT. That means the 100 times or whatever it is you’re putting out there would be 100 instances of infringement. You’re even calling it each “instance” of infringement. And then you say it’s fair because it’s for more than once instance of infringement. In fact, you say, it’s for thousands of instances. But that is not true. It’s up to $150,000 for each, single instance of willful infringement. Joel Tenenbaum was sanctioned more than $600,000 for 32 instances of infringement. And you don’t think that’s out of whack.

Your Target hypo doesn’t reflect what’s really going on here. What’s happening is a mob of people are running into a Target store and grabbing 400 dvds. And instead of going after all 400 of them, you think it’s fair to grab just one of them and put the whole blame on that one person. It may be more profitable to do it that way, but really, if you’re only able to grab that one person, then it’s only fair to charge him for what he’s actually done.

And with that I am out. Have a nice blog and thank you for allowing me to comment freely.

Its not designed to punish, its designed to deter! The whole point is determent! Its like punishing a child – If you dont fear the penalty then you wont respect the rule/law. I absolutely agree with the minimum/maximum. In fact, it could possibly be higher because there are thousands of people out there who apparently don’t fear the repercussions.

Thanks for the comment and the debate, I sincerely enjoyed it! Come back soon!

Punishment is a matter for criminal law, and for guilt proven beyond a reasonable doubt. The studio, as I understand it, is allowing its works to be redistributed, so that it can use copyright law to obtain the legal names of thousands of individuals who *might* be implicated in file sharing (but, might not; ISP records are erratic, the person who pays the ISP bill is far from the only user of the connection; and, those actually committing illegal acts are most likely to use other peoples’ wireless connections or hacked computers, so the holders of those accounts are usually not the actual culprits). They then extort “settlements” from people who are faced with paying tens of thousands of dollars in legal costs and being slimed as a viewer of porn, even though completely innocent.

Extortion is about getting something of value from someone by threat of harm, so it precisely does describe the situation with respect to those who have committed no crime. Your broadside assumes that anyone the studio chooses to accuse is guilty. Yet, no proof is ever provided, certainly not enough to justify punishment.

Civil liability is supposed to recompense an injured party for the harm suffered. So, as a matter of equity, collecting damages is warranted by convincing a court of the damages only by a “preponderance of the evidence.” But it’s difficult to argue that a studio who successfully convinced a few users to pay a dollar each to watch a porn clip on pay-per-view is entitled to thousands of dollars of “damages” for each person who watches it without paying that dollar.

Your Wal-Mart example has the thieves enter the store to steal their copies of the DVD. But, the porn manufacturers effectively leave their product lying around, hoping it will be picked up by as many people as possible, because that makes for more efficient abuse of the legal extortion they intend. And, the next step of the studios’ legal strategy is the equivalent of asking the DMV for the registered owner of every car whose license plate was picked up by the parking lot camera, in preparation for suing them all and putting them in the position of either settling or defending against embarrassing allegations. Your position leaves both guilty and innocent equally “punished”, and that is fundamentally unjust.

2) Your entire post is predicated on “the studios, as I understand it, is allowing its works to be redistributed…”. I stopped paying attention at that point. Let me be frank – YOU APPARENTLY DON’T UNDERSTAND! That’s such a crock of shit and I can tell you from someone who is actually a part of this- ABSOLUTELY NOT TRUE. I hold my ethical standards quite high. The Editor of this blog holds his even higher. Neither one of us would compromise our ethics to “extort” some kids lunch money.

The Editor of this blog does more to protect your freedom of expression in 1 hour than you can ever hope to in a lifetime. It’s been an honor to be a part of that. If there was ever even a whisper as to improper litigation or extortion you can bet your ass he would walk away from that studio – no questions asked.

3) I have been a part of a number of actions and settlements – ZERO have been against the wrong person identified through their IP address. When we (finally) come across a person who was wrongly identified, I’m sure we would be more than happy to let him out of the suit. That has yet to happen and I doubt it ever will. Not ONE of the MANY MANY MANY that have been subpoenaed has turned out to be an “innocent”.

4) The studio I happen to work for does anything but leave its works “lying around hoping for it to get picked up.” This is such an idiotic statement it makes me chuckle. EVERY SINGLE TIME you watch a video its marked with a warning. Even the main page of the site contains a warning. I’m not sure what studios you are talking about but its certainly not the one I work for and please do not confuse the legal strategy of one screwed up legal team and studio with ALL legal teams and studios.

5) What this whole thing is about, at least for US and our studio, is to deter the thieves so that they do it the right way- buy a MEMBERSHIP (not $1 on PPV – again check your facts). That way we all win, we continue to make money off a service we provide, you aren’t breaking any federal laws, and as an added bonus you can’t get sued because you haven’t stolen anything!

Again, the simple solution is stop stealing other people’s shit and you have nothing to worry about…. that and think twice before you write something with zero factual basis on an incredibly popular legal blawg ;)

Vaughn, not sure if you,or anyone else, has picked up on the cognitive dissonance in this post but its not a good idea to say in one part that
“Perhaps she should look up the definition of “extortion.” Words mean something.”
and in another part qualify ‘copyright infringement’ with the words ‘theft’ and later on ‘stealing’ when they are totally and absolutely legally different to each other.

Though I understand to the layperson that infringement is a ‘type’ of theft, I also understand that they would also equate what the EFF were contextualising with extortion too.

You’re absolutely correct. However, I was referring to extortion and thievery in 2 different contexts. One, in response to the EFF’s position that we are extorting money from infringers – not true. Two, drawing a parallel by using the words “theft” and “stealing” because a substantial composite of the population can’t conceptualize the reality and effects of copyright infringement.